Supreme Confidence

Anyone fortunate enough to experience the annual re-enactment exercises that mark George Washington's audacious Christmas Day crossing of the Delaware River in 1776 will find there is no getting around the special role New Jersey played in reigniting the American Revolution.

As one of the original 13 colonies, N.J. responded forcefully to the phrase "no taxation without representation" and helped set the stage for a new constitutional order that keep political power divided, checked and limited. The "Ten Crucial Days" that resulted in major victories for the Continental Army over the Hessians in Trenton and the British in Princeton re-energized the American cause.

But over the past few decades, history has turned away from ideals underpinning the Revolution and in the direction of an unelected, elite class of policymakers. Despite the reverence and appreciation local residents have maintained for the "Spirit of 1776," they now inhabit a world that was reshaped at the behest of a renegade government agency.

Visitors to the "Old Barracks" in Trenton, where some of Hessian soldiers were quartered at the time of the Revolution, can't help but notice the sad irony attached to the museum's awkward juxtaposition with the state Division of Taxation building.

Beginning in 1973, the N.J. Supreme Court saw fit to interject itself into education policy and to force tax hikes onto local residents in an effort to bring funding for poorer school districts into greater parity with wealthier districts. It was at this point that the concept of self-government as it was expressed in the Declaration of Independence became inoperative in New Jersey.

Writing on behalf of the court in Robinson v. Cahill, Chief Justice Joseph Weintraub suddenly discovered that the local funding system used to support public schools violated the "thorough and efficient" clause included in the state constitution because it shortchanged urban districts.

For almost 100 years prior to Robinson, no previous court viewed the funding mechanism underpinning K-12 education as a subject matter open to adjudication. This ruling set the stage for Abbott v. Burke, which resulted in a 1985 ruling that ordered state spending on poor districts to be put on an equal footing with wealthier school districts.

In subsequent Abbott rulings, the court has ordered state officials to maintain equal levels of funding and to support supplement programs aimed at boosting the quality of education in urban settings.

Under Chief Justice Robert Wilentz (1979-1996), the court further intruded into the public policy in a series of rulings known collectively as Mount Laurel, which directed local communities to provide affordable housing.

Where does the N.J. Supreme Court derive the authority to reshape public policy in such a profound manner without popular consent and without legislative approval? Gregory Sullivan, a practicing attorney who writes a column for the Trenton Times, sees an "imperial judiciary" at work that has violated the separation of powers.

"How much money is spent and where has nothing to do with the constitution," Sullivan said. "It has everything to do with determinations by legislators and governors who are electorally responsible for their decisions. By contrast, it is essentially impossible to hold any court accountable for the squandered millions that have been judicially ordered for decades."

Since the mid-20th century, the progressive impulses that have held sway in New Jersey have given cover to judicial activism. But in response to the state's deteriorating financial position, the political climate has shifted in a manner that favors reform. A critical turning point came last April when Gov. Christie turned the school budget elections into a referendum in favor of fiscal conservatism and against judicial overreach.

For years, the New Jersey Education Association (NJEA), the state's powerful teachers union, had rationalized continued property tax hikes on the basis of dubious constitutional reasoning. This time around, the NJEA pitch fell flat. In appearances across the state, Christie urged residents to reject any school budget that did not include a pay freeze for teachers. They responded by rejecting 58 percent of the school budgets last April.

Christie described the rejection rate as "a seismic change" that is reflective of a new attitude in New Jersey. "They [the voters] want, real fundamental change," he said at a post election press conference. "We didn't lead in that regard. We merely gave voice to what the people of New Jersey were already feeling."

Throughout his campaign, Christie was particularly critical of the judiciary and of decisions like Abbott v. Burke that allowed the Supreme Court to impose its political preferences on the public.

"Many of these decisions have been results in search of a rationale," Christie has observed. "And that's not the way to appropriately interpret the laws and interpret the constitution. And there have been any number of examples of that over time."

Christie set off a dispute last May with the state Senate when he decided against the reappointment of a sitting Supreme Court justice. Under the N.J. Constitution ratified in 1947, all lower-court judges and Supreme Court justices are appointed by the governor. After a period of seven years, they are then eligible to be reappointed by the governor with tenure until mandatory retirement at 70.

When Associate Justice John Wallace petitioned for reappointment, Christie took the opportunity to deliver on his campaign pledge to remake the judiciary and settled on an alternative nominee last May. It was the first time in 63 years that a Supreme Court judge seeking tenure was denied. However, Senate President Stephen Sweeney, a Democrat, refuses to hold confirmation hearings for Anne Patterson, the former deputy state attorney general, whom Christie has selected.

"Revolution is a good word to describe what Governor Christie is trying to do," said Thomas A. Gentile, a New Jersey attorney who is active in the Federalist Society. "Christie campaigned for governor on his unabashed promise to end the New Jersey Supreme Court's decades of over-reaching. His ultimate goal is to restore to the governor and to the legislature the constitutional powers that Supreme Court decisions such as Abbott and Mount Laurel have entrenched in the hands of the judiciary. Those decisions -- with their court-imposed spending requirements and endless judicial oversight -- have handcuffed the governor and the legislature, preventing them from implementing innovative solutions that go beyond just spending more taxpayer dollars on the same old failed approaches that the Supreme Court years ago imposed unilaterally. That's why Governor Christie has made it a priority to end judicial activism in New Jersey."

Gentile, who in 1996 and 1997 served as a law clerk to Samuel A. Alito, Jr. (then a Judge of the United States Court of Appeals for the Third Circuit), anticipates that Governor Christie will make the composition of the state Supreme Court an issue in New Jersey's next round of legislative elections this fall. "In 2010 Governor Christie upended politics-as-usual in New Jersey by urging the people to come out to vote in local school budget elections," he observed. "Governor Christie transformed those school budget elections -- which had always been rubber-stampings of backroom deals between unions and municipalities -- into referenda on his agendas of fiscal and educational reform."

There is no debating the legal standing Gov. Christie has to deny reappointments and to make his own selections, Earl Maltz, a Rutgers University law professor, said in an interview. Although the standoff between Gov. Christie and Sen. Sweeney has disrupted the normal flow of politics in New Jersey, there is a potential upshot in that it could help clarify key constitutional questions, the Rutgers professor points out.

There is an argument to be made, for example, that a careful reading of the state constitution precludes Chief Justice Stuart Rabner from making a temporary appointment to the court, unless it falls short of a quorum. Nevertheless, Rabner has appointed Chief Appellate Judge Edwin Stern to fill Wallace's seat.

"I think he [Rabner] lacked the authority to make this appointment particularly within the context of the situation we are talking about," Maltz said. "To be fair, he's not the first to do this. That authority only comes into play when the court falls below the number needed to have a quorum and this could become an issue once we have another vacancy, which will be soon."

Justice Roberto Rivera-Soto has already announced that he will step down in September.

"That's when the legalities get a little dicey," Maltz observed. "Once you get below five justices you do not have a quorum and at that point it's pretty clear the chief justice can make appointments."

Although Christie has the option of making a recess appointment, which would expire at the end of the next regular session in the N.J. Senate, he has made it clear that another appointment will not be made until after his current nominee receives a hearing.

Within the next few months, the standoff between Gov. Christie and Sen. Sweeney will likely come to a head. The Supreme Court has asked Superior CourtJudge Peter Doyne to hold fact-finding hearings on the $820 million Gov. Christie has cut from public schools in an effort to close the state's budget gap. If Doyne recommends a restoration of the funding, Christie could take the opportunity to force a final showdown over the court's ability to shape policy without popular consent.

It is worth recalling that when taxes were imposed on New Jersey residents during the colonial era without any recourse to elected officials, it was called "tyranny." In the current political cycle, Sen. Sweeney calls it "judicial independence."

Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.

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